Monthly Archives: February 2006

TV may not be so bad for you. The NY Times reports: Study Finds Test Scores Not Lowered by Television: “Does television rot children’s brains? A new study by two economists from the University of Chicago taps into a trove of data from the 1960’s to argue that when it comes to academic test scores, parents can let children watch TV without fear of future harm.”Arrested Development
The season 3 finale certainly felt like a final series finale. If the show is over, it went out well. The final four episodes were packed full of the running jokes that make the show such a joy to watch (and probably make the show difficult to get in to.)
Slate’s Troy Patterson found these same characteristics made the finale less than enjoyable for him: Farewell to the Bluths: “Where the show had a wide dada streak, the last four episodes of its third season bristled with dadaist hostility toward its audience, or perhaps its nonaudience, and toward TV itself, as if to say, “Screw you, too.””
In the NY Times, Alessandra Stanley: A Quick End to the Cult Series That Lived Up to Its Name: “The Bluths are deliciously self-centered and absurd, the dialogue is quick and corrosively funny, and yet “Arrested Development” is not addictive. It is possible to fully enjoy one episode and not feel compelled to see what happens next.”
Page Six reports that Showtime has picked up AD for a 26 episode order.Battlestar Galactica
I haven’t watched the latest episode (“Downloaded”) yet, but this second half of season 2 has gone by incredibly quickly– perhaps because the middle few episodes (articularly “Black Market”) were weaker than the norm. Fortunaely, there is a lot on the table for these final 3 episodes.
Showrunner Ron Moore’s podcasts are worthwhile to listen to, as he discusses the decisions that the writers and producers made for each episode and for his take on what works and what doesn’t work.Lost
Lost is starting to lose me. We haven’t learned anything new about any of our core characters. Each Jack flashback episode seems to reveal that he is even emptier than he seems. Fortauntely, the last two shows (Sawyer-centric and Sayid-centric) were better than before. The problem with Lost is that the questions are more interesting than the answers, but leaving only questions without answers is going to be very unsatisfying.
One of the Museum of Television and Radio bloggers agrees: Living in the Land of Lost

Of course, Lost is not perfect. There are holes, big holes, and season 2 is paling in comparison to season 1. Some stories are redundant at best (enough about Jack and his troubled soul – conflicted by just about every human relationship he has), while others are totally unbelievable at worst (that the plane full of smuggled heroin – that, ironically enough, Charlie is addicted to – was loaded by Mr. Eko back in Nigeria, and contains the body of his brother too. Phew! Come on already!). And for as many interesting characters that have been developed, there are equally as many unlikable, one-dimensional ones (um…Ana Lucia, please go away. Now, please!).

The Sopranos
The Sopranos are coming back! The Sopranos are coming back! The grandaddy of character and arc heavy serial dramas paved the way for shows like Lost, Galactica and even Arrested Development. But The Sopranos is bigger than any of its followers. And it’s set in New Jersey!
The Sopranos Google Map highlights key locations in NY and NJ where last season’s key developments occurred.

The Pro Bloggers
New York Magazine: Blogs to Riches – The Haves and Have-Nots of the Blogging Boom: “By all appearances, the blog boom is the most democratized revolution in media ever. Starting a blog is ridiculously cheap; indeed, blogging software and hosting can be had for free online. There are also easy-to-use ad services that, for a small fee, will place advertisements from major corporations on blogs, then mail the blogger his profits. Blogging, therefore, should be the purest meritocracy there is. It doesn’t matter if you’re a nobody from the sticks or a well-connected Harvard grad. If you launch a witty blog in a sexy niche, if you’re good at scrounging for news nuggets, and if you’re dedicated enough to post around the clock—well, there’s nothing separating you from the big successful bloggers, right?”
The key, of course, is not to start up in an already saturated niche, but to find a new niche.
Wired News: How to Almost Live on Blogging: “There are people who make a living blogging, but if you’re going to do it on your own, you darn well better have a ton of traffic. There are 10 million lonely bloggers and people probably only read a few thousand. If you’re going to make serious money off this, it’s a serious time commitment.”
Daniel Gross, Slate: Twilight of the Blogs Are they over as a business? “As a cultural phenomenon, blogs are in their gangly adolescence. Every day, thousands of people around the world launch their blogs on LiveJournal or the Iranian equivalent. But as businesses, blogs may have peaked. There are troubling signs—akin to the 1999 warnings about the Internet bubble—that suggest blogs have just hit their top.”
We may be in the middle of the blog bubble. But saying that blogs are over as business tools is like saying that the internet is over. A publisher must simply have a raise d’être beyond simply posting frequently in reverse chronological order to create a business.
Jason Fry, The Wall Street Journal: Blog Epitaphs? Get Me Rewrite: “Maybe you’ve heard: Blogs are a vanishing fad — this year’s digital Pet Rock. Or a business bubble about to pop. Or a sucker’s bet for new-media fame seekers.”
Don’t forget that a large number– if not the vast majority– of blogs are not intended to be part of the media, but simply to be a way to connect to friends and family or to keep track of info for future personal use.The Prof Bloggers
National Law Journal: Blogging law profs assault ivory tower “An increasing number of law professors are using blogs-online journals or newsletters-to break free from traditional modes of legal scholarship. With an immediacy and ability to reach millions of readers, blogs are proving an attractive vehicle among legal scholars for spouting and sharing ideas. ”
James Edward Maule: In Defense of Law Blogging: Part Two: “From my vantage point, it appears that the so-called traditionalists are beginning to sense the threat to their way of academic life that blogs, and technology generally, pose. Understandably, they seem concerned that the foundations of the think/write/publish routine to which they are accustomed and with which they are comfortable are beginning to crumble. The irony is that the approach held so dear by traditionalists probably isn’t old enough to qualify as a tradition.”
Rick Garnett, Prawfsblawg: Scholarship or Cyber Chit-Chat?
“Look, of course it is true that most blogging looks a lot more like ‘chit chat’ than like ‘scholarship.’ But isn’t there a pretty big chunk of middle ground here? My sense is that — at least in the law-blogger world — a fair bit of what gets blogged and blogged about does ‘have [something] to do with scholarship': People blog about what others are writing about, about what they are writing about, about what they plan to write about, or what they tried to write about.”

If telecom and cable companies have their way, a new Telecommunications Act will allow them to create preferred tiers of service. The cable and telecom companies argue that this is the only way to make voice over IP and streaming media services sufficiently reliable to compete with traditional telephony and broadcast/cable/satellite.
Allowing preferential treatment will end the democratic experiment of the internet. Publishing online lowers the barriers to entry and promotes both creativity and free speech. A tiered internet service favors established interests over individuals. Such a plan could make it difficult for individuals to engage in broadcasting or publishing rather than simple communication.
This issue means more for the future of the internet than the price. It could affect the way that networks are linked together. To make the public interested in this issue before legislation passes, I fear that the proponents of network neutrality need to find a better term than the technically accurate, but un-sexy “network neutrality” to gain substantial public support. Perhaps “the freedom to connect”?
Here are some links about the fight over the future of internet access in the US.
In the NY Times, Randall Stross writes: Hey, Baby Bells: Information Still Wants to Be Free – New York Times: “For one thing, the occasional need for a preferential fast lane for streaming video – that is, moving pictures displayed as fast as they arrive, rather than downloaded first and played from memory – exists in the United States only because our standard broadband speeds are so slow. Were we ever to become a nation with networks supporting gigabit service, streaming video would not require special handling.”
Lawrence Lessig: the fiction zone that DC has become “Broadband is infrastructure — like highways, if not railroads. If you rely upon “markets” alone to provide infrastructure, you’ll get less of it, and at a higher price. (See, e.g., the United States, today.)”
Susan Crawford: Rhetorical legerdemain “But it has finally become clear to me that the telephone companies are planning to ensure that subscribers never see “the Internet” at all over these high-speed connections. Instead, subscribers will see the “broadband video” offerings of the network owner, to which particular paying web sites and paying VoIP services have been added. They’ll be able to access “information derived from the Internet,” in the words of the bill, but not the internet itself. Only those willing to pay for slower access speeds (and perhaps willing to pay more for these slower speeds than for the high-speed access) will be seeing “the Internet.””
Susan Crawford: Framing: “The debates over the future of the internet should begin (although they hardly ever do) by answering the question What Is The Internet?”
Adam Pennenberg, Slate: Internet Freeloaders: Should Google have to pay for the bandwidth it consumes? “If the telcos and cable companies get their way, we’ll have a Balkanized Web. Content providers who can afford to pay for premium service will market superior products to consumers with fast connections. Everyone else will make do with second-class companies at second-class speeds.”
Preston Gralla, Networking Pipeline: Google: We Won’t Pay Broadband Cyberextortion: “The BellSouths and Verizons of the world should focus on offering better services at lower prices — not trying to fine-tune the Tony Soprano business model. That’s been tried already, by a company you may have heard of, called Enron. And look where it got them.”
Ed Felten: How Would Two-Tier Internet Work? “I should say up front that although the two-tier network is sometimes explained as if there were two tiers of network infrastructure, the obvious and efficient implementation in practice would be to have a single fast network, and to impose deliberate delay or bandwidth throttling on non-preferred traffic.”
Daniel Berninger: Net Neutrality Not An Optional Feature of Internet: “The Internet does not exist without net neutrality. Consider the misleading assertion that tinkering with network neutrality simply amounts to adding class of service as in the case of air travel or HOV lanes on highways. Network neutrality refers to the uses of the Internet not the quality of access. There already exists an infinite range of classes of service as regards Internet access. End users pay for what they get regarding the performance and capacity of Internet access. Internet content and service providers like Google, Amazon, and Vonage already pay for access to the Internet.”
Paul Riismandel, Media Geek: The Future of the Internet Is on the Table: “I think the very ability for independent media makers to continue to use the internet to easily and inexpensively distribute their works is in jeopardy. AT&T and Verizon want to charge content providers for the data they send to their customers’ computers, even though content makers, like me, already pay for our own internet access in addition to the fees to host our content on servers.”Net Freedom Now!
Jef Chester, The Nation: The End of the Internet? ” If we permit the Internet to become a medium designed primarily to serve the interests of marketing and personal consumption, rather than global civic-related communications, we will face the political consequences for decades to come.”
Virtual Karma: Dad, What Was Internet? “Wait. I’m all confused here. We paid for our end of the bandwidth and the websites paid at their end. So who is getting a free ride here?”
AP: Building the Internet Toll Road: “On the internet, the traffic cops are blind — they don’t look at the data they’re directing, and they don’t give preferential treatment.”
Christopher Stern, The Bergen Record: Roadblocks on the super- highway: “The changes may sound subtle, but make no mistake: The telecommunications companies’ proposals have the potential, within just a few years, to alter the flow of commerce and information — and your personal experience — on the Internet. For the first time, the companies that own the equipment that delivers the Internet to your office, cubicle, den and dorm room could, for a price, give one company priority on their networks over another.”

Some thoughts relevant for considering career choices:
Ron Baker, the [non]billable hour: Attorneys Aren’t Knowledge Workers: “When you consider the metrics used by most firms to measure their team members, they all come from the Industrial Revolution’s command-and-control hierarchies (realization, utilization, billable hours, etc).”
Douglas Rushkoff: Fun AT Work vs Fun AS Work: “By making the “fun” at work extraneous – external and unrelated – to the boring and dull work that people are actually doing, it only exacerbates the problem. It’s like giving kids dessert as a “reward” for finishing the main part of the meal. Why do they need a reward? Because the main meal tastes terrible!”
Jill’s Notebook: After the law firm “After working for the law firm, I learned that it might be wise to be wary of organizations bottom-heavy with young, energetic people and run by a few older people with a lot of money and/or power.”

Eric Goldman looks at last year’s cases involving the statutory “safe harbor” protection for web sites sued for user-created content. Technology & Marketing Law Blog: 47 USC 230 Year-in-Review (and Landry-Bell v. Various, Another Defense Win): “So, according to my tally, in 2005 there were 10 defense wins under 230 and 1 plaintiff win. And even the sole plaintiff win wasn’t dispositive–the court refused to grant a motion to dismiss based on the factual allegations, but the 230 defense could still apply after discovery.”

In Perfect 10 v. Google, Inc., 04-9484 (C.D. Cal, Feb. 17, 2006), US District Judge A. Howard Matz ruled that “Google’s creation and display of ‘thumbnails’ likely do infringe P10’s copyrights. The Court also concludes, however, that P10 is not likely to succeed on its vicarious and contributory liability theories.”
The court adopts the “server test” for judging whether a web site infringes on the copyright owner’s display right: Direct linking to an image file does not infringe upon the display right. Serving it from one’s own server does infringe.
The finds that Google Image Search does not engage in fair use when it creates thumbnail images of P10 files that are freely available on the web, as the result of infringing acts of third parties. Perfect 10 has a commercial interest in thumbnails– it has licensed thumbnails to a mobile phone service. This is the deciding factor in distinguishing Google from Arriba Soft. Kelly, the plaintiff against Arriba Soft, did not have a commercial interest in thumbnail images. Here, because P10 executed a licensing deal to make money off of thumbnail images for a mobile service, that Google’s image search was not fair use, because P10 established that it had commercial interest in thumbnail images.
In its ruling granting a preliminary injunction, “P10 has established a likelihood of success on the merits that creating and serving thumbnail images does directly infringe P10’s copyrights.”
In deciding that Google is not contributorily liable for facilitating infringement of P10 images, the court differentiates Google Image Search from Napster, finding that Google only resembles Napster in facilitating searching. Napster also facilitated file transfer from otherwise unaccessible hard drives. Google helps searchers locate “information (text, images, video, newsgroup discussion threads, blogs, academic papers, price information, maps, driving directions) found on the entire, publicly available web.”
The court ruled that Google is not vicariously liable, because google lacks sufficient control over the web for vicarious liability. “Google does not exercise control over the environment in which it operates– i.e., the web. Google’s ability to link from its search index does not render the linked-to site inaccessible.… If the phrase ‘right and ability to control’ means having substantial input into or authority over the decision to serve or continue serving infringing content, Google lacks such right or ability.”
William Patry: Google Nudes: “The court’s fair use analysis and its attempt to both follow and distinguish Kelly v. Arriba is disappointing, a bit of a tally up the factors and see who has more (Plaintiff 3, Google 0, a draw on the third factor).”
William Patry: Google Nudes II: “In considering Google’s use also “consumptive,” I think the court erred significantly, and not only for the reason given yesterday (the markets are different): the harm from cellphone downloading, even if real (I can’t imagine it is), occurs only with English users. I don’t see how that is relevant in a U.S. case.”
Fred von Lohmann, Electronic Frontier Foundation: Perfect 10 v. Google: More Smooth Than Crunchy: “While you wouldn’t know it from the headlines, I think yesterday’s preliminary injunction ruling against Google will be remembered as a little bad for Google, but a lot good for the Web.”
John Ottaviani, Technology & Marketing Law Blog: More on Perfect 10 v. Google: “Leave it to the porn industry to make copyright law on the Internet.… It seems like the court took reasonable and defensible positions here in applying 1970’s copyright law to Google’s 21st Century Internet practices. Also, Google is not Napster, but once again we see the risks of basing one’s business, or part of one’s business, on the “fair use” defense. ”
C.E. Petit, Scrivener’s Error: Cassandra Was Here: “There appear to be four fair-use factors—just not the four specified in § 107. To begin with, the first and fourth factors (broadly, the “commercial necessity” factors) generally get conflated and weighed as at least half of the fair use equation. P10 v Google is an excellent example of this; Judge Matz’s decision is a classic example of counting the same “facts” twice in his analysis of the first and fourth factors. What this basically says is that, with only very rare exceptions, the first and fourth factors will point the same way anyway. It also gets into the “fifth fair use factor”—the one that the Copyright Office’s Orphan Works Report didn’t quite acknowledge was driving the entire inquiry: administrative convenience.”
Wendy Seltzer: Google Wins Some, Loses Some, in First Round versus Perfect 10: “Yesterday, the California Central District issued an order (local copy) that’s a mixed bag, but gets a lot right in its description of how copyright works on the web.”
Xenia P. Kobylarz, Law.com: Perfect 10 Racks Up Preliminary Injunction Against Google: “A Los Angeles federal judge ruled Friday that the Internet search engine’s image search feature, which displays thumbnail versions of images found on other Web sites, probably infringed a Web pornographer’s copyrights.”
LA Times: Google’s image search set back: “If upheld, the judge’s preliminary ruling could throw a kink into the way Mountain View, Calif.-based Google collects and displays photographs in the image portion of its search engine. Lawyers not involved with the case said it would have little effect on Google’s overall business, which generated $6.1 billion in revenue last year.”
Martin Schwimmer, The Trademark Blog: Perfect 10 Obtains Injunction Against Google’s Use of Thumbnail Images “The thought occurs as I read this section that Google makes this go away by cropping a corner off the thumbnail (or perhaps reproduces thumbs using sepia tone).”
NY Times: Ruling May Undercut Google in Fight Over Its Book Scan: “Representatives of publishers and authors who have filed lawsuits against Google over its Book Search program said they believed that the decision raised questions about a case that Google had cited in its defense of the Book Search program.”
Michael Madison: District Judge Scores a Perfect 10: “I read the judge as concluding that the public interest in having free access to Perfect 10’s photos is less than the public interest in having access to Les Kelly’s photos. In other words, Perfect 10 has done more than Les Kelly did to make the photos into mere commodities, but precisely for that reason there is no reason to make them more widely available than they already are.”
William Patry: Preliminary Injunctions and Affirmative Defenses: “One issue in the Perfect 10 v. Google, Inc. case was whether Perfect 10, in seeking a preliminary injunction, bore the burden not only of establishing a likelihood of success on its prima facie case, but in also establishing it was likely to overcome any affirmative defenses Google asserted, in that case fair use. Judge Matz, following the district court decision in the Dr. Seuss case, held that Perfect 10 did bear that burden. The opinion, however, missed contrary authority, and perhaps most importantly, understandably did not discuss a Supreme Court opinion handed down the same day (February 21) that held to the contrary.”

A Brooklyn Law 2L writes MusicBlawg which is, not surprisingly, a blog about music law. Full of pithy analysis.
David “No, I’m not the serial killer” Berkowitz, one of the web-savviest people I know, now has a blog, Inside the Marketer’s Studio, full of linky, livebloggy and podcasty goodness.
This blog is going to continue to suck for the immediate future.

Disclaimers

While blog posts here may discuss topics involving legal issues, the discussion is for informational purposes only. Nothing on this site is intended to be legal advice and so should not be used as a substitute for the advice of competent counsel.
Nothing on this site reflects the opinion of anyone else, including my employer(s) (if any), or even me, if I decide to change my mind